Employment Law Daily Police chief gets qualified immunity despite retaliation for union employee’s criticism
Tuesday, February 2, 2016

Police chief gets qualified immunity despite retaliation for union employee’s criticism

By Ronald Miller, J.D. The police chief of New London, Connecticut, was entitled to summary judgment against a police officer’s suit brought under 42 U.S.C. Sec. 1983 for unconstitutional retaliation, ruled the Second Circuit. Finding that the district court did not correctly apply the law for determining whether a state actor is entitled to dismissal of a lawsuit, the appeals court reversed the lower court decision. Because no authority clearly established that the police officer’s interest in speech as a union officer attacking the police chief’s competence as chief outweighed the chief’s governmental interest in effective administration of her department, she was entitled to summary judgment based on qualified immunity (Lynch v. Ackley, January 28, 2016, Leval, P.). The police officer and union official alleged that the police chief violated his First Amendment rights by retaliating against him for various episodes of speech critical of the police chief’s performance. Specifically, over a period three years, the officer spoke on eight occasions, either publicly or in union meetings, criticizing the chief’s performance of her responsibilities. At the conclusion of discovery, the police chief moved for summary judgment, arguing that her conduct did not violate the First Amendment and that, in any event, she was entitled to have the case against her dismissed by reason of her qualified immunity. The district court denied her motion. The police chief appealed the district court order denying her motion for summary judgment on the ground of qualified immunity. Qualified immunity. After first disposing of the police officer’s challenge to the appeals court’s jurisdiction, and reviewing the law of unconstitutional retaliation for speech, the Second Circuit turned to the question whether the police chief was entitled to qualified immunity. A state actor charged under Section 1983 with violating a plaintiff’s constitutional rights is entitled to have the action dismissed on the basis of qualified immunity if at the time of the challenged conduct there was no “clearly established law” that such conduct constituted a constitutional violation. Here, the Second Circuit agreed with the police chief that there was no clear law at the time of the events establishing that her conduct constituted a First Amendment violation. The police officer first claimed that the chief retaliated against him for his perceived role in the union’s endorsement of a mayoral candidate. The court observed that the union’s mayoral endorsement undoubtedly expressed a matter of public concern, the police officer’s role in the union endorsement constituted speech as a citizen, and an employee’s First Amendment interest in expressing support for a candidate for election to public office will, in most circumstances, outweigh the employer’s interest in the efficient accomplishment of the public responsibilities of the agency. However, the appeals court found that the chief’s retaliatory acts were limited to her exercise of her own First Amendment right to defend herself against the officer’s attacks. Here, the police chief allegedly encouraged a news reporter to seek out and publish derogatory information about the officer relating to civilian complaints on his conduct as a K-9 officer. This allegedly retaliatory conduct consisted of the police chief’s own exercise of her own core First Amendment rights in a public forum about a matter of public importance relating to employment to defend herself against attacks. Thus, the appeals court held that in the absence of any clear authority for the chief’s liability, she was entitled to qualified immunity as to this claim. Union grievance. The police officer next claimed that the police chief retaliated against him for various incidents of his union activity, which included his filing a union grievance protesting the chief’s presence at a union meeting discussing the police department’s flex-time policy. The appeals court observed that it was far from clear that this grievance asserted a matter of public concern, rather than a personal grievance. The court noted that conflicts between labor and management often have a strong flavor of “personal grievance” notwithstanding that the personal grievance is shared by numerous employees. Further, it observed that for public employees, it was not difficult for a plaintiff to construct an argument that a dispute is a matter of public concern, either because it relates to the delivery of services to the public, or because it invokes basic aspects of the right to unionization. However, the court concluded that it was unclear whether such a grievance should be viewed as a matter of public concern for purposes of Pickering analysis. Remaining claims. The remainder of the police officer’s claims involved retaliation for communication with town leaders or the public at large concerning the officer’s and the union’s contentions that the police chief was a bad chief, and that her continuing presence in that position endangered the safety of police officers and the public. Nonetheless the appeals court held that the police chief’s retaliatory actions were not prohibited by clearly established law. In this instance, the court found that because the officer’s speech interfered significantly with the chief’s ability to effective run the police department, she was entitled to retaliate under Pickering’s balancing test.

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